DRI Today - Legal Research, Law Blog and Magazine Archives - DiscoveryDRI’s flagship publication for over 40 years, is a national, monthly publication that contains original writings on topics of professional interest to lawyers and others concerned with the defense of civil actions.http://forthedefense.org/
http://www.rssboard.org/rss-specificationBlogEngine.NET 1.6.1.0en-GBhttp://forthedefense.org/opml.axdhttp://www.dritoday.org/syndication.axdDRIDRI Today - Legal Research, Law Blog and Magazine Archives0.0000000.000000Koch Rattles Wine Auction World: GBL § 350 "Game Changer"<p>To successfully assert a claim under New York General Business Law &sect; 349 (h) or &sect; 350, "a plaintiff must allege that a defendant has engaged in (1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice"&nbsp;</p>
<div>A claim is brought under GBL &sect; 349 to allege misleading and deceptive trade practices and under GBL &sect; 350 to allege false advertising. &nbsp;Typically, these two sections are pled in tandem, both in single plaintiff cases and in class action litigation seeking relief from consumer fraud.&nbsp;</div>
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<div>In their NYLJ article (12/28/12) looking back at the significant New York State class action decisions that were handed down during 2012, authors Thomas A. Dickerson, Jeffrey A. Cohen (both Second Department judges) and Kenneth A. Manning devote special attention to the Court of Appeals decision in Koch v. Acker, Merrall &amp; Condit, in which the court clarified that justifiable reliance is not an element of a GBL &sect; 350 claim. Prior decisions had already done away with any reliance requirement on a GBL &sect; 349 claim</div>
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<div>The element of reliance had always seeming been an important defense weapon in deceptive trade practice class action litigation. In Koch, plaintiff alleged that the auction house described its wines as "extraordinary, " "absolutely stunning," and among the "greatest wines...ever experienced" &nbsp;when, in fact, these wines were undeniably nothing of the kind. But the First Department made short shrift of plaintiff's claims. &nbsp;The court gave considerable deference to the disclaimer language in the auction house's brochure which provided an "as is" disclaimer.</div>
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<div>In addition to the "as is" caveat, the "Conditions of Sale/Purchaser's Agreement" made "no express or implied representation, warranty, or guarantee regarding the origin, physical condition, quality, rarity, authenticity, value or estimated value" of the wine. &nbsp;Should not a &nbsp;reasonable consumer, the appellate court reasoned, been alerted by these disclaimers, would not have relied, and thus would not have been misled, by defendant's alleged misrepresentations concerning the vintage and provenance of the wine it sells? &nbsp;In this instance, according to Decanter.com, the plaintiff was Florida billionaire, William "Bill" Koch, who apparently believed that the auction house had sold him the proverbial "bill of goods". &nbsp;If anyone was to read and understand the "fine print" in the disclaimer, surely a sophisticated investor like Mr. Koch would.</div>
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<div>In answer, the &nbsp;Court of Appeals held that the "as is" provision does not bar the claim (at least at the pleading stage) and does not establish a defense as a matter of law.&nbsp;</div>
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<div>As Messrs. Dickerson and &nbsp;Cohen explained in an earlier NYLJ article (4/19/12), the Koch ruling may be a "game changer" in deceptive and misleading business practices class action litigation. &nbsp;They cite a long series of prior appellate cases, which had established reliance as a basis for obtaining a recovery under GBL &sect; 350, which clearly is no longer good law. In the past, New York courts were reluctant to certify GBL &sect; 350 claims because they found that reliance was not subject to class wide proof.&nbsp;</div>
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<div>When the Appellate Division issued its decision, wine industry attorney Brian Pedigo in Irvine California expressed concern to Decanter.com that it would set bad precedent if all prospective bidders had to satisfy themselves by inspection rather than to trust in the auction house's represenations. &nbsp;In pertinent part, he commented, "A regular Joe consumer is not going to fly overseas [or across the country] to inspect wine. A reasonable consumer will rely on the representation of the seller, and will not read or understand the fine print disclaimers". &nbsp;An adverse decision for the auction house, he believed, would be "horrible for consumer trust in the online auction environment; it could possibly destroy this niche market sector". &nbsp;Would &nbsp;internet commerce beadversely affected if the e-consumer was not able to trust the e-seller?</div>
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<div>The Court of Appeals apparently agreed with Mr. Pedigo that the risk of authenticity should not entirely shift to the consumer, regardless of whether the consumer is Joe consumer or Bill Koch.&nbsp;</div>
<div>The claim against Acker Merrall is not Mr. Koch's only wine-related lawsuit. &nbsp;He previously brought a RICO claim against Christie's, another auction house, after purchasing four bottles of wine that he believed were connected to Thomas Jefferson, but turned out were not really that old. &nbsp;That Koch wine auction case ended up in the Second Circuit; but that's a story for another time.&nbsp;</div>
<div>At the end of the day, Koch serves to harmonize GBL &sect; 349 and GBL &sect; 350; there is no reliance pleading requirement under either statute.&nbsp;</div>
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<div>However, all is far from lost for the defendants in these cases. &nbsp;As discussed at the outset of this article, plaintiffs must prove &nbsp;(1) consumer-oriented conduct that is (2) materially misleading and that (3) plaintiff suffered injury as a result of the allegedly deceptive act or practice". &nbsp;Accordingly, although reliance need not be shown, the plaintiff must still prove causation. &nbsp;Proof of causation remains plaintiff's critical hurdle in succeeding in these claims. &nbsp;</div>
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<div><em>Republished with permission from <a href="http://www.toxictortlitigationblog.com/2012/12/articles/new-york-state-litigation/koch-rattles-wine-auction-world-gbl-a-350-game-changer/" target="_blank">&nbsp;www.toxictortslitigationblog.com</a></em></div>
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http://forthedefense.org/post/Koch-Rattles-Wine-Auction-World-GBL-c2a7-350-Game-Changer.aspx
William A. Ruskinhttp://forthedefense.org/post/Koch-Rattles-Wine-Auction-World-GBL-c2a7-350-Game-Changer.aspx#commenthttp://forthedefense.org/post.aspx?id=9e4f8abc-303d-490a-b245-2f12a35bbab9Thu, 28 Feb 2013 03:15:00 -1100Bad FaithClass ActionsDefense PracticeDiscoveryWilliam A. Ruskinhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=9e4f8abc-303d-490a-b245-2f12a35bbab90http://forthedefense.org/trackback.axd?id=9e4f8abc-303d-490a-b245-2f12a35bbab9http://forthedefense.org/post/Koch-Rattles-Wine-Auction-World-GBL-c2a7-350-Game-Changer.aspx#commenthttp://forthedefense.org/syndication.axd?post=9e4f8abc-303d-490a-b245-2f12a35bbab9Club Fight Remix: Drake and Chris Brown Move Battle to the Courtroom<p><span style="color: #3d3c3c; font-family: Arial, sans-serif; font-size: 13px; line-height: 22px; text-align: justify;">Last June, Drake and Chris Brown found themselves on opposite sides of a New York City nightclub scuffle.&nbsp; Now, according to reports by TMZ, they are suing each other over the fight in the hopes of receiving a judicial determination of who was responsible for the brawl.&nbsp; The fight began after an argument broke out over the pop singer Rihanna.&nbsp; Eventually, punches and bottles were thrown, leaving the club in shambles and Brown with a gash on his chin.&nbsp; After a model named Romain Julien was also injured in the fight, he sued Brown, Drake, and the club for damages stemming from his cuts, &ldquo;cosmetic defects,&rdquo; and emotional distress.&nbsp; Most likely, Brown and Drake are seeking this determination in order to avoid paying damages should Julien win his lawsuit.</span></p>
<p style="border: 0px; margin: 15px 0px; padding: 0px; font-size: 13px; color: #3d3c3c; font-family: Arial, sans-serif; line-height: 22px; text-align: justify;">Other notable lawsuits stemming from that particular fight include Entertainment Enterprises Ltd.&rsquo;s $4 million lost licensing deal claim, along with a $20 million eye injury claim brought by NBA star Tony Parker.&nbsp; Surprisingly, the incident resulted in no criminal charges against either party due to a lack of conclusory evidence.</p>
<p style="border: 0px; margin: 15px 0px; padding: 0px; text-align: justify;"><em style="color: #3d3c3c; font-family: Arial, sans-serif; font-size: 13px; line-height: 22px;">As originally published at </em><em style="color: #3d3c3c; font-family: Arial, sans-serif; line-height: 22px;"><span style="font-size: x-small;"><a href="http://sportslawinsider.com/club-fight-remix-drake-and-chris-brown-move-battle-to-the-courtroom/" target="_blank">Sports Law Insider</a></span></em></p>
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http://forthedefense.org/post/Club-Fight-Remix-Drake-and-Chris-Brown-Move-Battle-to-the-Courtroom.aspx
Joseph M. Hannahttp://forthedefense.org/post/Club-Fight-Remix-Drake-and-Chris-Brown-Move-Battle-to-the-Courtroom.aspx#commenthttp://forthedefense.org/post.aspx?id=d1f51ccf-d44b-4a90-8d57-c442504eab54Thu, 21 Feb 2013 03:20:00 -1100Civil Justice SystemDefense PracticeDiscoveryLaw SuitPremises LiabilityJoseph M. Hannahttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=d1f51ccf-d44b-4a90-8d57-c442504eab540http://forthedefense.org/trackback.axd?id=d1f51ccf-d44b-4a90-8d57-c442504eab54http://forthedefense.org/post/Club-Fight-Remix-Drake-and-Chris-Brown-Move-Battle-to-the-Courtroom.aspx#commenthttp://forthedefense.org/syndication.axd?post=d1f51ccf-d44b-4a90-8d57-c442504eab54Is Hands Free Driving Risk Free? Not According to Most States<p>Do you talk or text while driving? If so, you better check out the status of the law in your state. Here are two links that will give you important information on these laws. And local governments are getting in on the act. For example, this Wednesday Mission, Kansas, begins the process of enacting an ordinance allowing only hands-free phones while driving.</p>
<p class="MsoPlainText"><a href="http://www.distraction.gov/content/get-the-facts/state-laws.html">http://www.distraction.gov/content/get-the-facts/state-laws.html</a></p>
<p class="MsoPlainText"><a href="http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html">http://www.ghsa.org/html/stateinfo/laws/cellphone_laws.html</a></p>
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http://forthedefense.org/post/Is-Hands-Free-Driving-Risk-Free-Not-According-to-Most-States.aspx
Dale Conder Jr.http://forthedefense.org/post/Is-Hands-Free-Driving-Risk-Free-Not-According-to-Most-States.aspx#commenthttp://forthedefense.org/post.aspx?id=f15cecb1-0c38-40fd-a1a6-ae3ee59b1a2cTue, 19 Feb 2013 03:11:00 -1100AutomotiveCriminal LiabilityDamagesDefense PracticeDiscoveryEmployment/Labor LawEvidenceGovernmental LiabilityLaw SuitDale Conder Jr.http://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=f15cecb1-0c38-40fd-a1a6-ae3ee59b1a2c0http://forthedefense.org/trackback.axd?id=f15cecb1-0c38-40fd-a1a6-ae3ee59b1a2chttp://forthedefense.org/post/Is-Hands-Free-Driving-Risk-Free-Not-According-to-Most-States.aspx#commenthttp://forthedefense.org/syndication.axd?post=f15cecb1-0c38-40fd-a1a6-ae3ee59b1a2cNCAA Sends Mixed Signals with New Enforcement Program<p><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">On Tuesday October 30th, the NCAA Board of Directors announced the adoption of a new enforcement structure that, among other things, creates additional levels of infractions, enhances accountability for head coaches, and seeks to punish violators with sanctions that more appropriately align with the actions that occurred.&nbsp; The most striking of these new initiatives, to be implemented beginning in August of 2013, is the creation of the new four-tiered structure for violation classification.&nbsp;</span><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">&nbsp;</span></p>
<p><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">Under the current model, violations are classified as either major or secondary.&nbsp; The new system sets forth violations as follows: Level I, Severe breach of conduct; Level II, Significant breach of conduct; Level III, Breach of conduct; and Level IV, Incidental issues.&nbsp; A copy of the NCAA&rsquo;s press release may be found&nbsp;</span><a style="text-decoration: initial; font-family: arial, helvetica; font-size: 14px; line-height: 18px;" href="http://www.ncaa.org/wps/wcm/connect/public/ncaa/resources/latest+news/2012/october/board+adopts+tougher+more+efficient+enforcement+program" target="_blank">here</a><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">.&nbsp; This new structure is the product of a year-long effort by the thirteen-member Board comprised of presidents, athletic directors, and conference commissioners.&nbsp;&nbsp; President Mark Emmert described the changes as part of a devotion to &ldquo;protecting the collegiate model,&rdquo; in part by &ldquo;remov[ing] the &lsquo;risk-reward&rsquo; analysis that has tempted people.&rdquo; &nbsp;&nbsp;</span><br /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">These changes come on the heels of increasing external pressure for a more consistent and transparent process, with a number of major infractions cases serving as the backdrop for this magnified criticism.&nbsp;&nbsp; Greater accountability and stricter sanctions is undoubtedly a step in the right direction when it comes to enforcement of what would be considered major infractions under the current framework.&nbsp; The NCAA should be applauded for taking measures to ensure consequences for coaches who plead ignorance while violations blatantly occur on their watches.&nbsp; But at the same time, the new violation structure is troublesome.&nbsp;&nbsp; Despite admirable efforts to construct a better system, this new four-tiered structure for violation classification fails to ameliorate many of the common concerns expressed with respect to NCAA Bylaws and enforcement of the same.&nbsp; Hopefully, this will be cleared-up with the upcoming changes to the substantive &ldquo;rules&rdquo; in the Bylaws.&nbsp;&nbsp;&nbsp;&nbsp;</span><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">The NCAA Bylaws are often denounced as too lengthy and too complex, and deservedly so.&nbsp; Moving from a two-tiered violation structure to a four-tiered system, if not matched-up with more common sense in rule substance, is an obvious step backward, and is counterintuitive if the desired outcome is a more workable framework.&nbsp; Increased confusion is even more likely when one considers the near endless interpretations that could be attributed to the definitions describing each tier.&nbsp; For example, consider the difference between a violation that &ldquo;threatens the integrity of the NCAA,&rdquo; versus a violation that merely &ldquo;provides more than a minimal, but less than a substantial&hellip;advantage.&rdquo;&nbsp; One definition classifies a Level I violation, while the other corresponds with Level II, but is there really a difference?&nbsp;&nbsp; The definitions may mean something different to a coach versus someone in compliance at a school or enforcement at the NCAA, so how then is the goal of deterrence met for the problem that President Emmert describes as a calculation of risk vs. reward made by coaches who currently do not have sufficient risk to their livelihoods or respective programs.</span><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">Under this system, inconsistencies may abound to an even greater degree than under the current model.&nbsp; This is likely to complicate the NCAA&rsquo;s investigative measures, which is problematic given the Association&rsquo;s already limited resources; resources so limited that some have even suggested that the NCAA get out of the enforcement business altogether (for a more in depth discussion of this proposal, see&nbsp;</span><a style="text-decoration: initial; font-family: arial, helvetica; font-size: 14px; line-height: 18px;" href="http://www.theatlantic.com/entertainment/archive/2012/10/the-ncaa-needs-to-let-someone-else-enforce-its-rules/264012/" target="_blank">this well-done piece</a><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">&nbsp;by Attorney Stephen A. Miller, recently published in The Atlantic).&nbsp; Finally, if the NCAA is really student-athlete first, then this measure does nothing to address the countless Bylaws that punish student-athletes for technical violations that provide no competitive advantage, and do little more than burden an already overwhelmed enforcement staff.&nbsp; Again, it is worth pondering, is an &ldquo;incidental issue&rdquo; even worth sanctioning?&nbsp; I hope that reforms not just in terms of a scholarship enhancement, but in terms of rules affecting student-athletes&rsquo; behavior on a day-to-day basis are addressed in the coming months.</span><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">Since the NCAA has chosen to divert its attention first to the method in which these intricate and often superfluous regulations are classified, my worry is that dealing with the substance later will lead to a continuance in seeing violations shoe-horned into a rigid framework that sometimes, but does not always fit.&nbsp; For those that desire more consistency in results, do you want the NCAA to have something akin to Federal Sentencing Guidelines, or more common sense in results?&nbsp; I am not yet convinced that the new enforcement structure will get us more common sense in results, which many (myself included) would like to see as opposed to more rigidity.</span><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><span style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">Over time, perhaps this will prove to be a positive step toward a streamlined, consistent, and fair process.&nbsp; For now though, a more detailed systemization of the NCAA&rsquo;s enforcement structure only seems to complicate matters further if there is not significant overhaul to the substance of the rules themselves.&nbsp; While my experiences may leave me a bit biased, until we see a comprehensive reassessment of the actual Bylaw language (promised in the next few months), I foresee this self-proclaimed &ldquo;overhaul&rdquo; as little more than a re-branding exercise.</span><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><br style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;" /><em style="font-family: arial, helvetica; font-size: 14px; line-height: 18px;">Originally published on <a href="http://www.sports-law.blogspot.com/2012/11/ncaa-sends-mixed-signals-with-new.html" target="_blank">Sportslawblog</a> *Hat tip to Brian Konkel for his work on this piece.</em></p>
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http://forthedefense.org/post/NCAA-Sends-Mixed-Signals-with-New-Enforcement-Program.aspx
Tim Epsteinhttp://forthedefense.org/post/NCAA-Sends-Mixed-Signals-with-New-Enforcement-Program.aspx#commenthttp://forthedefense.org/post.aspx?id=9684c3af-f223-45f6-8d0d-0cfae82d8dedThu, 08 Nov 2012 02:15:00 -1100Bad FaithCommercial LitigationDefense PracticeDiscoveryFederal RegulationsSports LawTim Epsteinhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=9684c3af-f223-45f6-8d0d-0cfae82d8ded0http://forthedefense.org/trackback.axd?id=9684c3af-f223-45f6-8d0d-0cfae82d8dedhttp://forthedefense.org/post/NCAA-Sends-Mixed-Signals-with-New-Enforcement-Program.aspx#commenthttp://forthedefense.org/syndication.axd?post=9684c3af-f223-45f6-8d0d-0cfae82d8dedEthics 20/20: The Impact of Technology<p>Every day, we see the impact of technology on the practice of law. Blogs, social networking, electronically stored information, and other legal resources create enormous economies and unprecedented depth in our field. But with these advantages come unrecognized perils. The transparency and mobility of electronic information creates significant risks to clients, unless properly controlled. As part of the project to rein in technology in the practice of law, the American Bar Association launched an ambitious multi-year project called Ethics 20/20. One of the major goals of Ethics 20/20 was to modernize the rules of ethics and bring them into congruence with the state of technology.</p>
<div>At its most recent meeting, the ABA passed multiple resolutions amending the Model Rules of Professional Responsibility to reflect the evolution of technology in the practice of law. This article provides a brief overview of those amendments. Those who are more interested in the details of the amendments can click here to read the reports online.</div>
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<div><strong>Confidentiality When Using Computers</strong></div>
<div>Resolution 105A makes changes to help lawyers understand how to protect client confidences when using new technology, including cloud computing, tablets, and smartphones. Though small, one of the most significant changes is included in Comment 6 to Rule 1.1 (Competence). The Rule now includes a requirement that &ldquo;a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.&rdquo; No longer can attorneys simply ignore developments in favor of staid methods of practice. To be competent, an attorney must work effectively with technology and keep alert to technological improvements and changes.</div>
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<div>The amendment to Rule 1.6 (Confidentiality of Information) is probably the largest and most impactful rule change related to confidentiality. Now, Rule 1.6(c) requires attorneys to &ldquo;make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating the representation of a client.&rdquo; The comments make it clear that attorneys are required to utilize reasonable safeguards to protect confidential information. These changes are geared toward the protection of electronic data, especially given the innumerable bits of sensitive information flying around every day.</div>
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<div><strong>Using Technology for Marketing</strong></div>
<div>Resolution 105B was designed to help lawyers understand how the principles of attorney advertising already incorporated into the Rules are affected by the growth of Internet-based marketing and social networking. This particular resolution accomplishes three main goals. First, changes to Rule 1.18 offer guidance on how to market online without inadvertently forming an attorney-client relationship. Recent cases have demonstrated confusion on behalf of the general public regarding whether an attorney-client relationship is formed when the potential client emails the attorney or fills out a communication form on the attorney&rsquo;s website. The amendments to Comment 2 of Rule 1.18 address the concern by stating that a person becomes a prospective client by &ldquo;consulting&rdquo; with a lawyer. While the existence of a consultation depends on the circumstances, the Comment eliminates potential passive liability to prospective clients. A consultation &ldquo;does not occur if a person provides information to a lawyer in response to advertising that merely describes the lawyer&rsquo;s education, experience, areas of practice, and contact information, or provides legal information of general interest.&rdquo; But, if the lawyer actively invites information about a possible representation, the lawyer is probably stuck with a prospective client.</div>
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<div>Second, the Rules contain a prohibition against paying others for a &ldquo;recommendation,&rdquo; and this Resolution modifies that prohibition to account for online lead generation services through chances to Comment 5 of Rule 7.2. Lawyers may now pay others for generating client leads, as long as the Internet-based lead generator does not &ldquo;recommend&rdquo; the lawyer. The lawyer is also responsible for the representations of the lead generator, with Comment 5 placing the onus on attorneys to ensure that the lead generator is not making statements that are inconsistent with the rules.</div>
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<div>Finally, amendments to Rule 7.3 assist attorneys in determining when communications on the Internet, particularly through social networking sites, may constitute a &ldquo;solicitation.&rdquo; Only a &ldquo;target communication initiated by the lawyer&rdquo; directed to a &ldquo;specific person&rdquo; that &ldquo;offers to provide&rdquo; legal services is a solicitation. Communications to the general public, including Internet banners, are not solicitations, so feel free to jump on that Facebook advertising spot.</div>
<div><br /></div>
<div><strong>Outsourcing</strong></div>
<div>Lawyers have been slow to adopt the economies of scale that outsourcing can provide, in part because of the perceived ethical dilemmas presented in outsourcing. Outsourcing can endanger confidential client information and presents a quandary over legal work being performed by attorneys not licensed in the United States. Resolution 105C encourages attorneys to ensure the efficiency, competence, and ethics of any outsourcing process. An entirely new comment is added to Rule 1.1, requiring the informed consent of the client to contract with any lawyer outside of the lawyer&rsquo;s own firm. And, lest we forget, lawyers are always charged with supervising non-lawyers; that requirement does not abate simply because work is being outsourced to a foreign country. Comments 1 and 3 to Rule 5.3 incorporate this concept and apply the general rule to all non-lawyers outside of the lawyer&rsquo;s own firm. The basic gist of the changes in Rule 105C is to encourage lawyers to keep a sharp eye on professionals hired from outside their own firm, and to work closely with clients in determining the proper scope of outside contracting and supervision. No surprise there&mdash;constant communication with the client is a harbinger of a durable and responsible attorney-client relationship.</div>
<div><br /></div>
<div><strong>Mobile Lawyers</strong></div>
<div>A prevalent by-product of an informationally small, but geographically large, practice is the tendency of lawyers to move their practice. The world does indeed get smaller every year. No longer do lawyers move down the street; more and more, attorneys are moving their practice to different jurisdictions, and virtual law offices are sprouting in all states. The remaining resolutions that passed enable attorneys to establish a practice in another jurisdiction&mdash;subject to stringent information protection requirements&mdash;while pursuing admission in that jurisdiction. Resolutions 105D and 105E address the ABA Model Rule of Practice Pending Admission and the ABA Model Rule on Admission by Motion, respectively. With a few states signaling their intent to adopt a uniform bar exam, these model rules and their amendments continue the progress toward a more uniform practice of law. In case you have never encountered these model rules, or their state versions, their purpose is to allow experienced lawyers who have moved into a different jurisdiction to continue to practice while awaiting an expedited admission to the Bar.&nbsp;</div>
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J. Logan Murphyhttp://forthedefense.org/post/Ethics-2020-The-Impact-of-Technology.aspx#commenthttp://forthedefense.org/post.aspx?id=d1188133-ea63-4eb9-abf1-6c1b97267db5Thu, 30 Aug 2012 03:19:00 -1100Attorney-Client Privilege Civil Justice SystemCorporate AmericaCorporate CounselDefense PracticeDiscoveryElectronic DiscoveryLaw Practice ManagementLawyers' Professionalism and EthicsPrivacySocial MediaTechnologyJ. Logan Murphyhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=d1188133-ea63-4eb9-abf1-6c1b97267db50http://forthedefense.org/trackback.axd?id=d1188133-ea63-4eb9-abf1-6c1b97267db5http://forthedefense.org/post/Ethics-2020-The-Impact-of-Technology.aspx#commenthttp://forthedefense.org/syndication.axd?post=d1188133-ea63-4eb9-abf1-6c1b97267db5Three (or is it Four?) Teams on This Legal Gridiron<p>With the preseason underway and the regular season right around the corner, football fans are gathering in front of their TVs and crowding stadiums across the country with copious amounts of food and drink watching the big game. &nbsp;Legal observers will have their own action to watch although this is likely to last several seasons. &nbsp; &nbsp;</p>
<div>In 2011, several former players suffering a variety of neurological disorders sued the NFL for negligence and fraud relating to whether the NFL knew and withheld that knowledge that concussions and other head injuries incurred during the playing of football could lead to long term brain damage and related side effects (no comment). &nbsp;Many of these suits received class action status and were removed to the United States District Court for the Eastern District of Pennsylvania.&nbsp;</div>
<div><br /></div>
<div>On August 13, 2012, the roster of players on this legal gridiron expanded to include the NFL&rsquo;s insurance companies. &nbsp;Alterra America Insurance Company, an excess insurance provider, filed suit in New York State Supreme Court in Manhattan seeking a declaratory judgment stating that Alterra</div>
<div><span style="white-space:pre"> </span>1)<span style="white-space:pre"> </span>does not have a duty to defend the NFL against player lawsuits</div>
<div><span style="white-space:pre"> </span>2)<span style="white-space:pre"> </span>does not have a duty to indemnify the NFL against player lawsuits</div>
<div><br /></div>
<div>Two days later, the NFL and NFL Properties filed suit against 32 insurance companies (or nearly every major insurer in the country as reported by Reuters) &nbsp;including Alterra asking the Court to require these insurers to defend and indemnify the NFL from the players&rsquo; suits. &nbsp;Why so many insurers? &nbsp;Because the NFL sued nearly every insurer that it has ever had regardless if a current business relationship currently exists. &nbsp;This is mostly a dispute about when duty to defend triggers. &nbsp;The NFL in its papers argues it&rsquo;s when the injury occurs. National Football League v. Fireman&rsquo;s Fund Insurance, BC490342, California Superior Court, Los Angeles County at 12. &nbsp;This becomes a bit of problem because different insurers insured the NFL at different times going back to 1963. Determining which injury (if only one) caused the long term damage, when that particular injury occurred and which policy was in effect at that particular time is going to be messy to say the least.&nbsp;</div>
<div><br /></div>
<div>However, the more interesting story here takes place nearly a week later. &nbsp;On August 21, Travelers&rsquo; Insurance followed &ldquo;suit&rdquo; and filed its own action against the NFL and the other insurance companies seeking a declaratory judgment with roughly the same arguments as Alterra. &nbsp;What makes this interesting is the fine distinction that Travelers&rsquo; makes in its papers which is how the other insurance companies become involved. &nbsp;</div>
<div><br /></div>
<div>Travelers' argues that its only obligation is to NFL Properties and not to the NFL itself (both the NFL and NFL Properties have been parties to these suits). &nbsp; Travelers&rsquo; argues that it never insured the NFL (whom we guess Travelers&rsquo; believes is going to take the brunt of any payout either in the form of a judgment or settlement) and therefore shouldn&rsquo;t have to bear any of the NFL&rsquo;s costs. Traveler&rsquo;s suit against the other insurance companies is a pre-emptive strike against its peers who &ldquo;may dispute Travelers&rsquo; position with respect to some or all of the foregoing matters, and make seek contribution from Travelers&rsquo; with respect to defense costs and/or indemnity paid under the policies they issued to the NFL and/or NFL Properties with respect [to the players&rsquo; law suits].&rdquo; Discovery Property &amp; Casualty Co. v. National Football League, 652933/2012, New York State Supreme Court, New York County (Manhattan) at 19.</div>
<div><br /></div>
<div>It looks like all the players are in their respective formations&hellip; and there&rsquo;s the kickoff.</div>
<div><br /></div>
<div><span class="MsoFootnoteReference"><span style="font-size: 10.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;"><!--[if !supportFootnotes]--><span class="MsoFootnoteReference"><span style="font-size: 9pt;">[1]</span></span><!--[endif]--></span></span><span style="font-size: 9.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;"> </span><span style="font-size: 9.0pt; font-family: &quot;arial&quot;,&quot;serif&quot;; mso-fareast-font-family: &quot;arial&quot;; mso-ansi-language: EN-US; mso-fareast-language: EN-US; mso-bidi-language: AR-SA;">Ben Berkowitz, &ldquo;NFL Sues Dozens of Insurers Over Player Injury Claims.&ldquo; <em>Reuters</em>.&nbsp; 08/16/12.&nbsp; Accessed on 08/28/12.&nbsp; Available at: <a href="http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932." target="_blank">http://mobile.reuters.com/article/sportsNews/idUSBRE87F0UB20120816?irpc=932.</a></span></div>
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Dan Gerber and Aaron J. Aisenhttp://forthedefense.org/post/Three-(or-is-it-Four)-Teams-on-This-Legal-Gridiron.aspx#commenthttp://forthedefense.org/post.aspx?id=073daf1a-f2a0-4653-99d6-4805ebeb8d01Wed, 29 Aug 2012 02:02:00 -1100Business LitigationCausationClass ActionsDamagesDefense PracticeDiscoveryEmployment/Labor LawEvidenceFraudInsurance IndustryInsurance LawLaw SuitPersonal InjurySports LawDan Gerber and Aaron J. Aisenhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=073daf1a-f2a0-4653-99d6-4805ebeb8d010http://forthedefense.org/trackback.axd?id=073daf1a-f2a0-4653-99d6-4805ebeb8d01http://forthedefense.org/post/Three-(or-is-it-Four)-Teams-on-This-Legal-Gridiron.aspx#commenthttp://forthedefense.org/syndication.axd?post=073daf1a-f2a0-4653-99d6-4805ebeb8d01Disclosing Client Information When Moving from One Firm to Another: Ethical?<p><a style="font-family: Arial, sans-serif; font-size: 10pt; text-align: justify; text-indent: 0.5in;" href="http://www.insidecounsel.com/2012/08/09/aba-says-disclosing-client-information-to-other-fi?ref=hp" target="_blank">As reported by InsideCounsel</a><span style="color: #444444; font-family: Arial, sans-serif; font-size: 10pt; text-align: justify; text-indent: 0.5in;">, the American Bar Association House of Delegates (&ldquo;ABAHD&rdquo;) recently approved an amended model rule stating that it is ethical for lawyers to disclose client information when trying to move from one firm to another.</span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="color: #444444; font-family: Arial, sans-serif; font-size: 10pt; text-indent: 0.5in;">Specifically, the rule states that it is ethical for an attorney in negotiations for a different job, as well as attorneys in merging firms, to disclose the identities of clients and the amount of business they generate because the information can help point out any conflicts of interest that might exist.&nbsp; However, the model rule states that lawyers still should not reveal clients' financial information.</span></p>
<p class="MsoNormal" style="text-align: justify;"><span style="font-size: 10.0pt; font-family: &quot;Arial&quot;,&quot;sans-serif&quot;; color: #444444; mso-ansi-language: EN;" lang="EN">Although the model rule has been approved by the ABAHD, the rule is simply an advisory rule.&nbsp; In addition, the rule provides little guidance for attorneys faced with the question of how much client information can be ethically revealed in states whose bar associations do not have rules covering this topic.&nbsp; Thus, prior to revealing any information, lawyers should carefully consider and weigh this model rule against </span><span style="font-size: 10.0pt; font-family: &quot;Arial&quot;,&quot;sans-serif&quot;; mso-fareast-font-family: &quot;Times New Roman&quot;; color: #333333;">Model Rules of Professional Conduct 1.6 and 1.9.</span></p>
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Charity K. Flynnhttp://forthedefense.org/post/Disclosing-Client-Information-When-Moving-from-One-Firm-to-Another-Ethical.aspx#commenthttp://forthedefense.org/post.aspx?id=6dbe5fea-68f3-41f4-ba9d-6aca3a9ba929Tue, 21 Aug 2012 03:49:00 -1100Associate Training and DevelopmentAttorney-Client Privilege Business LitigationCivil RulesCorporate CounselDefense PracticeDiscoveryEvidenceFederal RegulationsLawyers' Professionalism and EthicsLegal MalpracticePrivacyProfessional LiabilityCharity K. Flynnhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=6dbe5fea-68f3-41f4-ba9d-6aca3a9ba9290http://forthedefense.org/trackback.axd?id=6dbe5fea-68f3-41f4-ba9d-6aca3a9ba929http://forthedefense.org/post/Disclosing-Client-Information-When-Moving-from-One-Firm-to-Another-Ethical.aspx#commenthttp://forthedefense.org/syndication.axd?post=6dbe5fea-68f3-41f4-ba9d-6aca3a9ba929New Google Service - Creative or Creepy<p>Google recently launched a new service called Google Now that is available to users of its most current mobile operating system, Android Jelly Bean.&nbsp; Google Now automatically creates and presents a series of &ldquo;cards&rdquo; that try to organize your life by presenting information Google thinks you&rsquo;ll need at a given moment.&nbsp; The information presented via the cards is based on data Google collects based on how you use various Google services - such as Google searches and Gmail.&nbsp; For example, a recent Tech Crunch article notes that the cards may present you with information relevant to your current location, such as nearby restaurants, weather, schedules for nearby mass transit or how long it will take you to drive home from your given location.&nbsp; Similarly, the cards may present you with flight schedules and currency exchange rates if you&rsquo;re in a foreign country.&nbsp; The first time you click on the Google search box within Jelly Bean, Google pops up an introductory screen to provide more information about Google Now.&nbsp; Users can then explore the topic further.&nbsp; To use Now, users must explicitly opt in.</p>
<p class="MsoNormal">Once a user opts in, Google collects and aggregates even more information about you on a daily basis: accessing your email, your calendar, your contacts, your text messages, your location, your shopping habits, your payment history, as well as your choices in music, movies and books.&nbsp; In other words, what Google Now does is simply take the new, unified privacy policy you had to opt into a short time ago and regurgitates that information to you in what it considers to be useful ways.&nbsp; When Google first introduced its new privacy policy, at the beginning of this year, more than 30 U.S. state attorneys general protested.&nbsp; Now, by opting in to this program, users are providing even more information to Google, including the GPS coordinates for their home.&nbsp; Nonetheless, there has not been a great deal of attention placed on Google Now or its accompanying privacy implications. Although users may appreciate the convenience of the features that are transparent, they may not consider the significance of the information they are providing access to and what Google may elect to do with their data in the future.&nbsp; A case can be made that Google essentially &ldquo;forced&rdquo; users into agreeing to its new privacy policy, as you could not continue to use Google services without doing so.&nbsp; However, by actively &ldquo;opting in&rdquo; to the new Google Now program, it becomes more difficult to argue that you did not willingly provide Google with access to your data.&nbsp; So for now, users need to be aware of what they are providing access to.</p>
<p class="MsoNormal"><span style="font-size: 10.0pt; font-family: &quot;Arial&quot;,&quot;sans-serif&quot;; color: navy;">&nbsp;</span></p>
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Chad Godwinhttp://forthedefense.org/post/New-Google-Service-Creative-or-Creepy.aspx#commenthttp://forthedefense.org/post.aspx?id=38ef6085-1531-4167-b1e7-898d9b12b24bMon, 30 Jul 2012 01:57:00 -1100DiscoveryElectronic DiscoveryIdentity TheftPrivacyTechnologyChad Godwinhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=38ef6085-1531-4167-b1e7-898d9b12b24b0http://forthedefense.org/trackback.axd?id=38ef6085-1531-4167-b1e7-898d9b12b24bhttp://forthedefense.org/post/New-Google-Service-Creative-or-Creepy.aspx#commenthttp://forthedefense.org/syndication.axd?post=38ef6085-1531-4167-b1e7-898d9b12b24bPenn State: Dispelling the "Due Process" Myth and Perceived Precedential Value Problem<p>As to whether the punishment fit the crime in the imposition of punishment on current student-athletes and coaches that had no fault here, it is difficult to equate Jerry Sandusky's heinous actions and subsequent cover-up with standard NCAA violations that go to competitive advantage. Therefore, I can see why many people are having trouble with the punishment being levied against the innocent members of the football program in Happy Valley. Let's put that aside for the moment, though, to clear away some of what I consider to be misinformation and misinterpretations of this latest NCAA headline. In addition to punishment itself, Mark Emmert's executive declaration of Penn State's punishment on Monday left many on the sidelines enraged over (1) a lack of "due process" and (2) setting a bad precedent for future NCAA enforcement matters. As to (1), "due process" is not accorded to member institutions in the NCAA process, and I do not believe that (2) should concern current and future alleged rule-breakers in standard areas of violation such as recruiting, benefits, academic eligibility, amateurism, etc.</p>
<div><br /></div>
<div>As to the due process issue, the NCAA administrative law process does not accord Federal or state constitutional due process protection for those parties that go through enforcement proceedings, be it student-athlete reinstatement (SAR) or infractions. The U.S. Supreme Court made it clear that the NCAA is not a governmental actor and thus is not obligated to provide due process. Nat&rsquo;l Collegiate Athletic Ass&rsquo;n v. Tarkanian, 488 U.S. 179, 179 (1988). The NCAA is a private association made up of members that include schools and conferences. Those schools and conferences agreed to abide by the Association rules, including potential punishments for violations of Association rules, analogous to a country club and its members. (Bylaw 3.3.4.1). Schools and conferences are voluntary members of the NCAA, and therefore must abide by the associated rules and regulations. See, Hispanic Coll. Fund, Inc. v. Nat&rsquo;l Collegiate Athletic Ass&rsquo;n, 826 N.E.2d 652 (Ind. Ct. App. 2005) (holding that the NCAA&rsquo;s decisions regarding organization were not subject to trial court&rsquo;s review absent allegations of fraud or illegality, because the organization was a voluntary member of NCAA). Furthermore, &ldquo;[t]he articles of incorporation and bylaws of a not-for-profit corporation are generally considered to be a contract between the corporation and its members and among the members themselves.&rdquo; Id, at 658. Therefore, member schools are under an enforceable contract with the NCAA and subject to its rules, regulations, and any punishment it may sentence. Bylaw 19.5.2 lists all the appropriate penalties for major violations, including (l): other penalties as appropriate.&nbsp;</div>
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<div>Courts have been, and remain, reluctant to accept challenges to the substance of NCAA enforcement decisions; the Oliver case being one of the few exceptions. See e.g. Justice v. Nat'l Collegiate Athletic Ass&rsquo;n, 577 F. Supp. 356 (D. Ariz. 1983) (upholding NCAA sanctions for recruiting violations and denying student-athletes&rsquo; constitutiona land antitrust claims); but see Oliver v. Natl. Collegiate Athletic Assn., 2008-Ohio-7144, 155 Ohio Misc. 2d 1, 920 N.E.2d 190. Further, membership must tread lightly in either going to court to challenge a decision or, more likely, abiding by a court ruling overturning a NCAA decision pursuant to injunctive relief sought by a student-athlete, since the NCAA reserves the right to punish a member institution should an appellate court later reverse alower court&rsquo;s ruling overturning a NCAA decision. See, e.g. Nat&rsquo;l CollegiateAthletic Ass&rsquo;n v. Jones, 1 S.W.3d 83 (Tex. 1999) (holding that the NCAA&rsquo;s appeal from an injunction granted at the trial court level was not moot as to the applicability of retroactive penalties). Challenges to the NCAA administrative law process are for when the NCAA is not following its own &ldquo;fair process.&rdquo; So, the question applicable to Penn State is whether the NCAA did, in fact, follow its own fair process.&nbsp;</div>
<div><br /></div>
<div>The fair process established by the NCAA can be found in Article 32. From start to finish, including investigations and hearings, the infractions process takes over a year in most cases. The process includes a preliminary investigation, the possibility of summary-disposition, notice of inquiry, notice of allegation, institution investigation, written responses to the allegation, hearing, final Committee report and possible appeal. For example, allegations of impermissible recruiting and student-athletes receiving benefits from professional agents at the University of South Carolina first came to light in July 2010. The Public Infractions Report was issued two years later on April 27, 2012. On the other hand, the overall process with Penn State took about nine months.&nbsp;</div>
<div><br /></div>
<div>However, with Penn State, the NCAA did not follow the infractions process established in Article 32. So, does the NCAA's failure to follow its already-established process of investigation, enforcement, hearing, deliberation, decision, and possible appeal violate the fair process that it is bound to follow? Yes and no. A "quick look" analysis reveals that punishment was delivered by the NCAA President without regard for the existing NCAA enforcement structure; something not specifically articulated in NCAA bylaws, and certainly not something for which we see any precedent. However, the only party with standing to challenge the NCAA's declaration is Penn State, and Penn State consented to this punishment; ergo we now have a moot challenge.</div>
<div><br /></div>
<div>As someone who regularly represents parties in NCAA processes, knowing what information is public thus far, if I am Penn State, I do not think going through the infractions process would have been a better process for the Penn State community. Sure, the punishments might not have been as severe, but Jerry Sandusky's actions were not just corruptions of the NCAA's principles of amateurism, competitive fairness, and academic integrity, but acts of profound evil. As such, as the infractions process drags on, Sandusky's acts and any cover-up of those acts would be continually relived. Further, there is a cost in terms of counsel like myself to be involved in the process. Let's go back to the South Carolina example. The school said that it spent $535,667.50 in connection with the NCAA investigation. Finally, as to those who believe that Penn State would find relief only at the appellate level in the infractions process, there is no guarantee that Penn State would have taken the case this far. My friend, Jerry R. Parkinson, who served as a member of the NCAA Division I Committee on Infractions from 2000 until very recently (including service as the committee&rsquo;s first coordinator of appeals), cited in a law review article that only thirty-four of the ninety major infractions cases that went to a hearing from 2000 to 2009 were appealed.&nbsp;</div>
<div><br /></div>
<div>While I believe the less controversial route would have been an expedited infractions process that would necessarily include a summary disposition (the July 12, 2012 Freeh Report helps in this regard), for the Penn State community to heal, I have to think ripping the band-aid off quickly in the manner done here with Emmert's decision yesterday, while not ideal, is preferable to a drawn out infractions process.</div>
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<div><em>Reposted with permission - orginally posted July 25, 2012 on <a href="http://sports-law.blogspot.com/2012/07/done-penn-state-dispelling-due-process.html" target="_blank">Sports Law Blog&nbsp;</a></em></div>
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Tim Epsteinhttp://forthedefense.org/post/Penn-State-Dispelling-the-Due-Process-Myth-and-Perceived-Precedential-Value-Problem.aspx#commenthttp://forthedefense.org/post.aspx?id=da9f7374-e01e-4916-963a-eb0f2daf5d0dWed, 25 Jul 2012 05:01:00 -1100Civil Justice SystemCriminal LiabilityDefense PracticeDiscoveryJudicial ProcessPerjurySports LawTim Epsteinhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=da9f7374-e01e-4916-963a-eb0f2daf5d0d0http://forthedefense.org/trackback.axd?id=da9f7374-e01e-4916-963a-eb0f2daf5d0dhttp://forthedefense.org/post/Penn-State-Dispelling-the-Due-Process-Myth-and-Perceived-Precedential-Value-Problem.aspx#commenthttp://forthedefense.org/syndication.axd?post=da9f7374-e01e-4916-963a-eb0f2daf5d0dI’m Sorry, All Computers Are Fundamentally Compromised Content-Creation Devices<p><span style="color: #262626; font-size: 10pt;">The iPad is <a href="http://techland.time.com/2012/07/10/im-sorry-all-computers-are-fundamentally-compromised-content-creation-devices/" target="_blank">becoming more common</a> and much less a novelty in the everyday practice of law.&nbsp; It&rsquo;s advantages in the courtroom are highly praised.&nbsp; The ability to make a voluminous file highly portable is unmatched.&nbsp;&nbsp; The out of office connectivity give us an ability to work remotely and on a moment&rsquo;s notice that has never before existed.&nbsp; Yet it still is criticized for its inability to do the one thing that lawyers do most: draft documents.&nbsp; In the iPad world, this is know as &ldquo;generating content.&rdquo;&nbsp; This article in Time by Harry McCracken addresses the content creation &ldquo;problem&rdquo; and raises some interesting points.&nbsp;</span></p>
<p class="MsoNormal"><span style="color: #262626; font-size: 10pt;">Do you use your iPad for more than quick email responses?&nbsp; What drafting obstacles do you have with the iPad?&nbsp; Is speech recognition on mobile devices like the iPad the end of the Dictaphone?</span></p>
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http://forthedefense.org/post/Ie28099m-Sorry-All-Computers-Are-Fundamentally-Compromised-Content-Creation-Devices-Read-more-httptechlandtimecom20120710im-sorry-all-computers-are-fundamentally-compromised-content-creation-devicesixzz20VRu9QMn.aspx
Jim Pattillohttp://forthedefense.org/post/Ie28099m-Sorry-All-Computers-Are-Fundamentally-Compromised-Content-Creation-Devices-Read-more-httptechlandtimecom20120710im-sorry-all-computers-are-fundamentally-compromised-content-creation-devicesixzz20VRu9QMn.aspx#commenthttp://forthedefense.org/post.aspx?id=e6020d15-87d2-4d25-af41-609ae602429bFri, 13 Jul 2012 01:45:00 -1100Defense PracticeDiscoveryLaw Practice EconomicsLaw SchoolTechnologyJim Pattillohttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=e6020d15-87d2-4d25-af41-609ae602429b0http://forthedefense.org/trackback.axd?id=e6020d15-87d2-4d25-af41-609ae602429bhttp://forthedefense.org/post/Ie28099m-Sorry-All-Computers-Are-Fundamentally-Compromised-Content-Creation-Devices-Read-more-httptechlandtimecom20120710im-sorry-all-computers-are-fundamentally-compromised-content-creation-devicesixzz20VRu9QMn.aspx#commenthttp://forthedefense.org/syndication.axd?post=e6020d15-87d2-4d25-af41-609ae602429bInternet Broadens Definition of Federal Wire Fraud<p><span style="font-family: arial, helvetica, sans-serif;"><span style="font-family: mceinline;"><span style="color: black; font-size: 10pt;">As a recent post on<a href="http://www.pointoflaw.com/archives/2012/06/decision-on-web-sites-likely-to-yield-more-federal-fraud-prosecutions.php" target="_blank"> PointofLaw.com</a> noted, the Tenth Circuit recently affirmed the convictions of Howard O. Kieffer.&nbsp; Kieffer, who for several years practiced criminal defense law, had a problem - he never went to law school and had no license to practice law.&nbsp; A </span>California<span style="color: black; font-size: 10pt;"> resident, Kieffer held himself out as a criminal defense attorney via a domain name with a Virginia&nbsp;</span><span style="color: black; font-size: 10pt;">company, which also hosted the web site.&nbsp; The government argued that the web site he maintained, which was accessed by two of his victims, in Colorado&nbsp;</span><span style="color: black; font-size: 10pt;">and Tennessee</span><span style="color: black; font-size: 10pt;">, was a &ldquo;wire communication in interstate commerce&rdquo; sufficient to establish jurisdiction under the federal wire fraud statute.</span></span></span></p>
<p class="MsoNormal"><span style="font-family: arial, helvetica, sans-serif;"><span style="font-family: mceinline;"><span style="color: black; font-size: 10pt;">One aspect, in particular, of the Tenth Circuit decision raises eyebrows.&nbsp; The issue is what constitutes an interstate wire for the purpose of the wire fraud statute.&nbsp; The <a href="http://lawprofessors.typepad.com/whitecollarcrime_blog/2012/06/keiffer-decision-extends-wire-fraud.html" target="_blank">White Collar Crime Professor Blog</a> identified this as a particularly important issue in the cyber-connected world we now live in.&nbsp; This issue has been evolving for some time, as shown in United States v.&nbsp;</span><span style="color: black; font-size: 10pt;">Phillips, 376 F. Supp2d 6 (D. Mass. 2005).&nbsp; There, the court rejected the government argument that &ldquo;in order to satisfy the elements of the wire fraud offense, it was not necessary to present evidence that the pertinent wire communications themselves actually crossed state lines, as long as the communications (whether interstate or intrastate) traveled via an &lsquo;instrument of an integrated system of interstate commerce,&rsquo; such as the interstate phone system.&rdquo;&nbsp; More recently, the Tenth Circuit, in </span>United States<span style="color: black; font-size: 10pt;"> v. Schaefer, 501 F.3d 1197 (10th Cir. 2007), held that one person&rsquo;s use of the internet, &ldquo;standing alone&rdquo; was insufficient evidence that the item &ldquo;traveled across state lines in interstate commerce.&rdquo;</span></span></span></p>
<p class="MsoNormal"><span style="font-family: Arial, sans-serif; color: black;"><span style="font-size: small;"><span style="font-family: mceinline;">Therefore, it is now somewhat surprising to read in Kieffer that the Tenth Circuit changed its position.&nbsp; The court noted that before the website could reach the local host server, it had been uploaded by Kieffer to the Virginia company, and then transmitted from Virginia to Colorado and Tennessee. Based on those facts, the court held that "[t]he presence of end users in different states, coupled with the very character of the internet&rdquo; permitted the jury to infer transmission across state lines.&nbsp; Now, under Kieffer, an allegation that a web site was used to perpetrate fraud would give rise to federal wire fraud jurisdiction in nearly every case.&nbsp; Stated differently, given the &ldquo;the very character of the internet,&rdquo; it is unlikely that a defendant will reside in the same state as his web site host and victims.&nbsp; </span></span></span></p>
<p class="MsoNormal"><span style="color: black; font-family: Arial, sans-serif;"><span style="font-size: small;"><span style="font-family: mceinline;">Now, as Paul F. Enzinna noted, unless other courts reject Kieffer, the potential exists for a surge in federal wire fraud prosecutions.&nbsp; With Kieffer seemingly establishing such minimal interstate contact requirements, it would seem that virtually any viewing or use of a web site could be used to trigger federal jurisdiction.</span></span></span></p>
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http://forthedefense.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx
Chad Godwinhttp://forthedefense.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx#commenthttp://forthedefense.org/post.aspx?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9fWed, 27 Jun 2012 01:49:00 -1100Attorney-Client Privilege Business LitigationCivil Justice SystemCivil RulesCommercial LitigationCorporate AmericaCriminal LiabilityDiscoveryEvidenceFederal RegulationsFraudSecurities Exchange ActSecurities LitigationTechnologyChad Godwinhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9f0http://forthedefense.org/trackback.axd?id=3db938b0-a79f-4fb1-b392-5d2de2d70d9fhttp://forthedefense.org/post/Internet-Broadens-Definition-of-Federal-Wire-Fraud.aspx#commenthttp://forthedefense.org/syndication.axd?post=3db938b0-a79f-4fb1-b392-5d2de2d70d9fCourts and Social Media<p><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">A year ago we published an article in</span><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">&nbsp;</span><em style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">The Whisper</em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">&nbsp;</span><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">titled</span><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">&nbsp;</span><em style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Please Jurors, Check Your iPhone With The Bailiff</em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">&nbsp;</span><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">(Vol. 7, Issue 2.) The article discussed the increasingly frequent problem of jurors' use of the Internet to do their own research and the use of social media sites such as Facebook and Twitter to communicate with each other and the world outside of the courtroom regarding the trials in which they serve. The temptation of a sitting juror to do her own research, or to discuss the case with other jurors or outsiders, has always been there; it is just that the advent of the digital age has made the ability to succumb to temptation so much easier. Clearly, courts have taken notice of the problem. Our article last year discussed the nature of the problem and what you, the lawyer, could do to learn of and handle the problem when it occurs. This article will in turn discuss what courts and legislatures around the country have done, and to suggest what more should be done to combat the problem at its source.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">In the past year, there have been countless stories of jurors tweeting, posting to Facebook, blogging, or doing internet research during an ongoing trial. In a recent criminal case in California the jury was excused for a&nbsp;<em>Mardsen&nbsp;</em>hearing, which is when a defendant requests a new court-appointed attorney based upon a claim of ineffective assistance of counsel. During the hearing, which must be held outside the presence of the jurors, several jurors used a cell phone to Google the meaning of the hearing. The judge found out and was forced to declare a mistrial. Before releasing the jury, the judge reprimanded the jury and told them the consequences of their actions &ndash; that the State would have to pay for a new trial, and that the defendant, who may in fact be innocent, would have to spend the next few weeks in jail awaiting his new trial. Thus, the judge advised, the State incurred substantial funds and a man lost his liberty, all because the jurors spent less than five minutes on Google during a trial. Had the jury been better warned, with an explanation of potential risk, the jury may not have committed the misconduct.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Another example is that of Seth Rogovoy, a Massachusetts juror who was dismissed from a trial in February 2011 for his tweeting during his service. The tweets included a post which stated: "I am in contempt of court, de facto if not de jure" and "Sucks that you can't tweet from the jury box. What's the fun in that?" These tweets show that Mr. Rogovoy both understood that he was not allowed to make the posts and the potential consequence to himself, yet he did so anyway. After being dismissed by the judge, Mr. Rogovoy stated: "I never mentioned any of the people: the defendant, the witnesses. I never mentioned the court I was sitting in." In an interview later given to Bob Gardinier, as reported in the February 9, 2011 Albany Times-Union article&nbsp;<em>Rape trial of ex-priest now before jury: Deliberations set to start in case; juror dismissed after using "Twitter,"</em>&nbsp;Mr. Rogovoy stated that, given the popularity of social media platforms like Twitter, judges will be forced to confront them in the courtroom. In that respect, Mr. Rogovoy is absolutely correct.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">In order to prevent further juror misconduct through the use of social media, legislatures need to make it clear that it will not be tolerated, and courts need to instruct juries specifically on the impropriety of discussing or researching regarding an ongoing trial, why it is improper to discuss or research an ongoing trial, and the consequences to the juror if he or she fails to follow those instructions. This instruction should be made several times throughout the course of a trial, including when candidates are first called for jury duty, before voir dire, at the beginning of trial, before every recess, and before deliberations. The court must then monitor the jurors as best it can, and follow through with the threatened punishment. Most courts are now doing something about the social media, and in fact most of these suggestions are being followed by at least some jurisdictions. However, no jurisdiction has yet put them all together in a comprehensive effort to combat the social media problem. Without a strong message that juror misconduct is impermissible, the problem will only get worse.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">More than half the state and federal courts now have jury instructions that at least make a passing mention of the internet when advising jurors or prospective jurors on the prohibition of performing outside research or discussing an ongoing case. This is a good first step, as many of the jurors who have made social media postings in the past have relayed that they did not understand this to be a "discussion" which was prohibited by the rules. For this reason, it is important that the instructions make more than a mere passing reference. Rather, the instructions should be as specific as possible, mentioning sites such as Facebook and Twitter (or whatever the prevalent form or social media of the day happens to be). At least then, the rule itself will be clear to the jurors.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Additionally, the most effective jury instruction not only gives the rule, but also explains the reasons behind the rule. While lawyers understand that some evidence is inadmissible for one reason or another and will not be known to the jury, many laypersons have a different view. They see lawyers and judges as keeping information from them that they need to know. Thus, not only are they curious, but many believe that they must know all the facts in order to be the best juror they can be. It is also important, as many model instructions now realize, to give the jury the reasons so that they understand that it is important that they follow the rules. Just as important is to advise the jury of the consequences to the courts and parties if they do not follow the rules, and the likelihood of a mistrial.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Often these instructions are repeated in one form or another several times throughout the trial. This, coupled with a recitation of the policy reasons underlying the instruction, will provide the jury with a constant reminder of the prohibition and sound basis for not falling to temptation. While it may seem repetitive, the ease with which a person in today's world can pull out their cell phone and record a status update which can jeopardize the entire trial necessitates the constant reminder as seen in the examples above.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">In San Francisco County, in response to a jury pool of over 600 that was dismissed in 2009 following the realization that they had all researched a high-profile case prior to voir dire, the court takes a more aggressive approach. Prospective juries are given a questionnaire with a cover sheet that states in part:</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 1in;"><em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">You are ordered not to discuss this case with anyone; do not allow anyone to discuss the case with you. The only information you may tell anyone is that you are in a jury pool for a trial and the time requirements of that trial. You are also ordered not to read, listen to, or watch any news, Internet, or other media accounts of this case, past or present. You may not do research about any issues involved in the case. You may not blog, Tweet, or use the Internet to obtain or share information. (CCP &sect;1209(a)(10))</span></em></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">In addition to the instruction on prohibition, there must be consequences for a juror's willful disobedience of the rules. There are many individual instances where a judge has held a juror in contempt of court for violating the prohibition on research and discussion, and held hearings. This may need to be a more frequent and publicized occurrence to stem the growing problem. California recently passed a new law, AB 141, which went into effect on January 1, 2012, that makes a willful violation of the prohibition on research or use of social media punishable by not only civil contempt, but also makes it a misdemeanor.&nbsp;<em>See&nbsp;</em>Cal. Civ. Proc. Code &sect; 1209(a)(6); Cal. Penal Code &sect; 166(a)(6). In addition, the bill amends current law and requires that the jury be specifically instructed, before trial and before recesses, on the prohibition of research or dissemination of information, in all forms including electronic and wireless.&nbsp;<em>See&nbsp;</em>Cal. Civ. Proc. Code &sect; 611; Cal. Penal Code &sect; 1122. If anything, the bill does not go far enough. For instance, it could require offending jurors to pay for the consequences of their action, including the re-trial of the case if necessary.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">While several judges in California and in other jurisdictions have taken it upon themselves to hold a juror in contempt for prohibited conduct, including the use of social media or performing internet research, the California Legislature's codification of this violation as not only civil contempt, but also a misdemeanor, is a step in the right direction. However, while California's new law requires the judge to advise juries regarding the prohibition on internet research and use of social media, it does not require the judge to instruct the jurors on the consequences of their actions if they fail to follow the rules. This too is important. While advising the jury of the reasons behind the rule appeals to their sense of civic duty &ndash; the carrot &ndash; advising the jury of the consequences of failing to adhere to the instruction lets the jury know that there will be real punishment &ndash; the stick. Both the carrot and the stick are necessary in order to have the best chance of strict adherence to the rules.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Finally, not only is it important that there be a law in place for handling a juror's violation and that the jury be advised of that law. The law must be enforced, possibly by the district attorneys as a misdemeanor rather than the judge as civil contempt. The instruction could also contain a request that the jurors report to the court if they know or suspect that one of their co-jurors may be violating any of these orders, which would in essence be self-enforcement.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Other courts have experimented with the prohibition of cell phones in the courthouse for everyone, or at least for jurors. Indiana, for instance, requires the bailiff to collect and store computers, cell phones and other electronic communications devices prior to deliberations. This rule was implemented after the Indiana Supreme Court considered a case wherein a juror took a cell phone call during deliberations. There, the Indiana Supreme Court wrote: "We additionally observe that permitting jurors, other trial participants, and observers to retain or access mobile telephones or other electronic communication devices, while undoubtedly often helpful and convenient, is fraught with significant potential problems impacting the fair administration of justice&hellip;.The best practice is for trial courts to discourage, restrict, prohibit, or prevent access to mobile electronic communication devices by all persons except officers of the court during all trial proceedings, and particularly by jurors during jury deliberation."&nbsp;<em>Henri v. Curto</em>, 908 N.E.2d 196, 202-203 (Ind. 2009). Although helpful for times when the jurors are actually at the courthouse, this solution may not provide much in the way of curbing the practice of Internet research and social media discussions after hours, unless the jury is sequestered for the entire trial.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Our jury trial system is dependent on the jurors who are privy only to the evidence admissible in court, instructed on the law solely by the judge at the conclusion of the evidence and who have not been predisposed to outside opinions or discussions of the case before deliberation with their fellow jurors. While no solution is perfect, it is clear that courts, legislatures, and lawyers must do more to halt the increasing episodes of juror misconduct.</span></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><strong><em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Tom D'Amato&nbsp;</span></em></strong><em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">is a shareholder with Murphey, Pearson, Bradley &amp; Feeney in San Francisco. He maintains an active litigation and trial practice in state and federal courts, and in administrative proceedings before regulatory and government agencies. Chief among his areas of practice are professional liability, business disputes, intellectual property, real estate, employment and personal injury. Mr. D'Amato also regularly represents clients in appellate courts.</span></em></p>
<p style="font-family: 'Segoe UI'; font-size: medium; background-image: initial; background-attachment: initial; background-origin: initial; background-clip: initial; background-color: white; margin-top: 0in; margin-right: 0in; margin-bottom: 10pt; margin-left: 0in;"><strong><em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">Adam Koss</span></em></strong><em><span style="color: #222222; font-family: arial, sans-serif; font-size: 12pt;">&nbsp;is an associate with Murphey, Pearson, Bradley &amp; Feeney in San Francisco. Mr. Koss focuses his practice on all phases of litigation, representing clients at mediation, arbitration and through to trial if required. Mr. Koss has an active practice defending professionals and their businesses, specifically in malpractice actions. Although he focuses predominantly on the defense of professionals and businesses, he also represents clients in a variety of other fields, including products liability, employment law, real estate, contract disputes and general negligence.</span></em></p>
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Thomas J. D'Amato and Adam M. Kosshttp://forthedefense.org/post/Courts-and-Social-Media.aspx#commenthttp://forthedefense.org/post.aspx?id=0e9f5460-52aa-4279-a80b-52c89e65fd9bMon, 14 May 2012 05:35:00 -1100Civil Justice SystemDefense PracticeDiscoveryJudicial ProcessJuryJury SelectionLaw SuitSocial MediaThomas J. D'Amato and Adam M. Kosshttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=0e9f5460-52aa-4279-a80b-52c89e65fd9b0http://forthedefense.org/trackback.axd?id=0e9f5460-52aa-4279-a80b-52c89e65fd9bhttp://forthedefense.org/post/Courts-and-Social-Media.aspx#commenthttp://forthedefense.org/syndication.axd?post=0e9f5460-52aa-4279-a80b-52c89e65fd9b“What All the Fuss Is About”: The Supreme Court Confirms Property Owners’ Right to Challenge EPA Compliance Orders Issued pursuant to the Clean Water Act<p>The U.S. Supreme Court has rejected the federal government&rsquo;s argument that compliance orders issued by the U.S. Environmental Protection Agency (&ldquo;EPA&rdquo;) under the Clean Water Act, 33 U.S.C. &sect;&sect;&nbsp;1251 <em>et seq.</em> (the &ldquo;CWA&rdquo;), cannot be challenged in court.&nbsp; In a unanimous opinion issued on March 21, 2012, the Court held that such orders constitute &ldquo;final agency action&rdquo; that can be challenged under the Administrative Procedure Act, 5 U.S.C. &sect;&nbsp;706(2)(a) (the &ldquo;APA&rdquo;).&nbsp; <em>Sackett v. United States Environmental Protection Agency</em>, 566 U.S. ___, No. 10-1062 (Mar. 12, 2012).&nbsp; In so doing, the Court has weakened one of the favored arrows in the EPA&rsquo;s enforcement quiver.&nbsp;</p>
<p class="MsoNormal">The case arose when Chantell and Mike Sackett bought two-thirds of an acre near Priest Lake, Idaho, intending to build their home there.&nbsp; The vacant lot is zoned residential and is located in a platted subdivision, with sewer and water hookups.&nbsp; The lot is separated from the lake by several lots where homes have already been built.&nbsp; <em>Sackett,</em> slip op. at 3.&nbsp; The Sacketts applied for and obtained the necessary building permits from the local authorities.&nbsp; They began preparing the lot to build their home by filling in part of it with dirt and rock.&nbsp; <em>Id.</em>&nbsp; Not long after they did so, the EPA hit them with a compliance order.&nbsp;</p>
<p class="MsoNormal">As the Court explained, the EPA&rsquo;s compliance order contained a number of &ldquo;Findings and Conclusions,&rdquo; including: that the Sacketts&rsquo; property contains &ldquo;wetlands&rdquo;; that the property&rsquo;s wetlands are adjacent to Priest Lake, a &ldquo;navigable water&rdquo; under the CWA; and that, by filling in about half an acre of the &ldquo;wetlands&rdquo; on their property, the Sacketts had discharged pollutants into waters of the United States in violation of 33 U.S.C. &sect; 1311(a).&nbsp; Slip op. at 3-4.&nbsp; The order required the Sacketts to return the property to its prior condition and to seek a wetlands permit &ndash; costs that, according to the Sacketts, would add up to tens of thousands of dollars, many times the $23,000 they paid for the property.&nbsp; Failure to comply with the order could result in fines of up to $75,000 per day &ndash; $37,500 for the statutory violation and up to $37,500 for violating the compliance order.&nbsp; <em>Id.</em> at 2.</p>
<p class="MsoNormal">The Sacketts tried to challenge the wetlands finding &ndash; both before the EPA and in federal court under the APA &ndash; but their challenges were rejected.&nbsp; The district court in Idaho concluded that the CWA precludes judicial review of compliance orders before the EPA has started an enforcement action in federal court, and granted the EPA&rsquo;s motion to dismiss.&nbsp; <em>Sackett v. EPA</em>, No. 08-CV-185-N-EJL, 2008 WL 3286801 (D. Idaho Aug. 7, 2008).&nbsp; The Ninth Circuit affirmed.&nbsp; <em>Sackett v. EPA</em>, 622 F.3d 1139 (9th Cir. 2010).&nbsp; In other words, under the lower courts&rsquo; decisions, the only way in which the Sacketts could obtain judicial review of the compliance order would be to violate the order, wait for the EPA to sue them, and then raise their arguments in the enforcement action brought by the EPA, while potentially accruing up to $75,000 per day in civil penalties.</p>
<p class="MsoNormal">In his opinion for a unanimous Court, Justice Scalia set out to explain to the reader &ldquo;what all the fuss is about.&rdquo;&nbsp; After describing the Sacketts&rsquo; situation and history &ndash; what Justice Scalia referred to as the &ldquo;strong-arming of regulated parties&rdquo; by government regulators &ndash; the Court held that the Sacketts were entitled to seek relief from the courts.&nbsp;</p>
<p class="MsoNormal">The Court explained that the APA has a strong presumption in favor of allowing judicial review of final agency actions.&nbsp; The Court rejected the EPA&rsquo;s argument that the lack of an express provision allowing judicial review of administrative compliance orders in the CWA precluded such review, explaining:</p>
<p class="MsoNormal" style="margin-top:0in;margin-right:.5in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt">[I]f the express provision of judicial review in one section of a long and complicated statute were alone enough to overcome the APA&rsquo;s presumption of reviewability for all agency action, it would not be much of a presumption at all.</p>
<p class="MsoNormal" style="margin-top:0in;margin-right:.5in;margin-bottom:0in; margin-left:.5in;margin-bottom:.0001pt">&nbsp;</p>
<p class="MsoNormal">Slip op. at 8.</p>
<p class="MsoNormal">The Court held that the EPA&rsquo;s compliance order against the Sacketts met all the requirements for APA judicial review.&nbsp; First, the Court held that the compliance order was a &ldquo;final agency action&rdquo; because it imposed serious legal obligations on the Sacketts, including significant potential double penalties.&nbsp; Even more importantly, the order represented the &ldquo;&lsquo;consummation&rsquo; of the agency&rsquo;s decisionmaking process&rdquo; &ndash; because the terms of the compliance order were not subject to any further review, as the Sacketts discovered when they unsuccessfully sought a hearing before the EPA.&nbsp; Slip op. at 5-6.&nbsp; Second, the order clearly determined the Sacketts&rsquo; obligations by ordering them to restore their property to its prior condition.&nbsp; Finally, the CWA does not expressly preclude review by the courts.&nbsp; The Court therefore reversed the judgment of the Court of Appeals and remanded for further proceedings.&nbsp; <em>Id.</em> at 10.&nbsp;</p>
<p class="MsoNormal">Justice Ginsburg and Justice Alito filed concurring opinions.&nbsp; In her one-paragraph concurrence, Justice Ginsburg emphasized that the opinion does not address the question of whether the property owners &ldquo;could challenge not only the EPA&rsquo;s authority to regulate their land under the Clean Water Act, but also, at this pre-enforcement stage, the terms and conditions of the compliance order&rdquo; &ndash; a question that is left for another case and another day.</p>
<p class="MsoNormal">Justice Alito, in contrast, issued a scathing rebuke of the EPA, the CWA, and Congress, stating that &ldquo;[t]he position taken in this case by the Federal government &ndash; a position that the Court now squarely rejects &ndash; would have put the property rights of ordinary Americans entirely at the mercy of [EPA] employees.&rdquo;&nbsp; Alito, J., concurring op. at 1.&nbsp; While the Court&rsquo;s opinion &ldquo;provides a modest measure of relief&rdquo; by allowing property owners to challenge the EPA&rsquo;s jurisdictional determination under the APA, Justice Alito stated that &ldquo;[r]eal relief requires Congress to do what it should have done in the first place: provide a reasonably clear rule regarding the reach of the Clean Water Act.&rdquo;&nbsp; <em>Id.</em> at 2.&nbsp; Specifically, Judge Alito criticized the EPA&rsquo;s and Congress&rsquo;s failure to define what is meant by &ldquo;the waters of the United States,&rdquo; leaving this crucial jurisdictional determination to be made &ldquo;on a case-by-case basis by EPA field staff.&rdquo;&nbsp; <em>Id.</em>&nbsp;</p>
<p class="MsoNormal">The decision does not reach the merits of the Sacketts&rsquo; challenges to the compliance order, nor does it address the Sacketts&rsquo; due process argument.&nbsp; Nonetheless, the decision is significant, and the stakes are high.&nbsp; While the media has consistently portrayed this case as a battle between property owners as David against the EPA&rsquo;s Goliath, the opinion also represents a victory for all property owners, including businesses and corporations.&nbsp; Indeed, General Electric Co. had sought similar relief in a case last year, and filed an <em>amicus </em>brief in support of the Sacketts.&nbsp; Moreover, the Court&rsquo;s decision could impact not only CWA enforcement authority, but possibly could also impact review of compliance orders issued under other federal environmental statutes which, like the CWA, do not contain express prohibitions to judicial review.&nbsp; And, for cases arising out of orders issued pursuant to statutes that do contain an express prohibition against judicial review, the Court may yet decide to go beyond the terms of the statute and the APA and address the due process argument it did not reach in the Sacketts&rsquo; case.</p>
<p class="MsoNormal">&nbsp;</p>
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http://forthedefense.org/post/e2809cWhat-All-the-Fuss-Is-Aboute2809d-The-Supreme-Court-Confirms-Property-Ownerse28099-Right-to-Challenge-EPA-Compliance-Orders-Issued-pursuant-to-the-Clean-Water-Act.aspx
Carmen Toledohttp://forthedefense.org/post/e2809cWhat-All-the-Fuss-Is-Aboute2809d-The-Supreme-Court-Confirms-Property-Ownerse28099-Right-to-Challenge-EPA-Compliance-Orders-Issued-pursuant-to-the-Clean-Water-Act.aspx#commenthttp://forthedefense.org/post.aspx?id=64e6b18d-e6b7-47a8-9b4e-a5912911ea19Mon, 26 Mar 2012 01:56:00 -1100Civil Justice SystemClimate ChangeCorporate AmericaDefense PracticeDiscoveryEnvironmental LawEvidenceFederal RegulationsSupreme CourtToxic TortCarmen Toledohttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=64e6b18d-e6b7-47a8-9b4e-a5912911ea191http://forthedefense.org/trackback.axd?id=64e6b18d-e6b7-47a8-9b4e-a5912911ea19http://forthedefense.org/post/e2809cWhat-All-the-Fuss-Is-Aboute2809d-The-Supreme-Court-Confirms-Property-Ownerse28099-Right-to-Challenge-EPA-Compliance-Orders-Issued-pursuant-to-the-Clean-Water-Act.aspx#commenthttp://forthedefense.org/syndication.axd?post=64e6b18d-e6b7-47a8-9b4e-a5912911ea19The Importance of Demonstrative Exhibits<p><span style="font-size: 10pt;">Demonstrative exhibits are an integral part of any trial presentation.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">They are the tools that help us educate the jury about products, teach them about complex technical issues and understand the evidence.</span><span style="font-size: 12pt;">&nbsp; </span><span style="font-size: 10pt;">They can illustrate salient points that could be difficult to explain concisely and clearly, and can refute claims of our opponents.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">If a picture is worth a thousand words, a video or reenactment may be worth millions of words.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">The importance of the effective use of demonstrative aids cannot be overstated.</span></p>
<p class="MsoNormal"><span style="font-size: 10pt;">Demonstrative aids can run the gamut from simple drawings made on chalkboards by witnesses during their testimony to a high tech accident reconstruction video presentation.&nbsp; They may consist of several blowups of significant photographs, or enlargement of pertinent documents.&nbsp; The technology available today permits a wide range of possibilities, including highlighting text in a document and during testimony, enlarging and pulling out important language from a document and marking the document on the screen to direct the jury&rsquo;s attention to a specific part of an exhibit.</span></p>
<p class="MsoNormal"><span style="font-size: 10pt;">It may be important to demonstrate how a machine works, or how technology is used.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">It may be necessary to depict the biomechanical possibilities in a given accident.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">Videos, computer simulations and other technologies can be very effective to bolster your case.</span><span style="font-size: 10pt;">&nbsp; </span><span style="font-size: 10pt;">Timelines are a favorite demonstrative aid and with modern technology, the timeline can be &ldquo;created&rdquo; during witness testimony before the jury&rsquo;s eyes.</span><span style="font-size: 10pt;">&nbsp;</span></p>
<p class="MsoNormal"><span style="font-size: 10pt;">There are many creative and effective ways to create engaging demonstrative aids.&nbsp; The Trial Techniques SLG will take up the topic at the upcoming <a href="http://www.dri.org/Event/20120200" target="_blank">DRI Products Liability</a> meeting in Las Vegas (April 11-13).&nbsp; If you have any particular questions about this topic that you would like to be considered for further discussion in Las Vegas, please post.</span>&nbsp;&nbsp;</p>
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Blair Joneshttp://forthedefense.org/post/The-Importance-of-Demonstrative-Exhibits.aspx#commenthttp://forthedefense.org/post.aspx?id=4fed2d68-6620-4ed9-a8c8-589bea32947eTue, 20 Mar 2012 01:49:00 -1100Defense PracticeDiscoveryEvidenceExpert WitnessessLaw SuitProduct LiabilityTrial PreparationTrial PresentationsBlair Joneshttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=4fed2d68-6620-4ed9-a8c8-589bea32947e0http://forthedefense.org/trackback.axd?id=4fed2d68-6620-4ed9-a8c8-589bea32947ehttp://forthedefense.org/post/The-Importance-of-Demonstrative-Exhibits.aspx#commenthttp://forthedefense.org/syndication.axd?post=4fed2d68-6620-4ed9-a8c8-589bea32947eFact Patterns and Accident Recreation<p>Doctors rely on a patient's medical history, origin of pain and symptoms to diagnose a patient's illness and create a plan for treatment. &nbsp; Home builders rely on measurements, mathematical equations and soil types to identify structural stress points and create design specifications. &nbsp; Athletic coaches rely on an opponent's game tendencies, player skill sets and team strengths to identify play schemes and create successful game plans. &nbsp; Similarly, defense attorneys evaluate facts, law and contract terms to identify liability risks and create a strategy for defense.</p>
<div>In particular, Michael Pangburn of Thor Industries will address the methodologies and tools that defense attorneys use to evaluate facts, law and contract terms to identify risks. &nbsp;Mr. Pangburn will explain more at the SLG breakout session about how outside counsel should go about such responsibilities and assist in-house counsel.</div>
<div><br /></div>
<div>In addition to Mr. Pangburn, Kevin Breen of Engineering Systems, Inc. will explain the art and processes that go into recreating motorcycle accidents. &nbsp;Lastly, Glenn Fencl of Johnson &amp; Bell will discuss recent case law involving recreational products. &nbsp;</div>
<div>&nbsp; &nbsp; &nbsp; &nbsp;&nbsp;</div>
<div>Please plan to attend the 2012 DRI Products Liability Conference, April 11-13th, at the Venetian Palazzo Hotel in Las Vegas. &nbsp;More specifically, please stop by the Recreational Products' Specialized Litigation Group Workshop ("SLG"), which will take place on Friday, April 13, 2012, at 8:30 a.m. &nbsp;The SLG will discuss issues relevant to those attorneys that represent companies who manufacture recreational products. &nbsp;</div>
<div><br /></div>
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Clinton Fletcherhttp://forthedefense.org/post/Fact-Patterns-and-Accident-Recreation.aspx#commenthttp://forthedefense.org/post.aspx?id=a9ffe044-dfb3-475b-ab8f-e2439bcafe2fTue, 13 Mar 2012 01:51:00 -1100Defense PracticeDiscoveryEvidenceRecreational ProductsClinton Fletcherhttp://forthedefense.org/pingback.axdhttp://forthedefense.org/post.aspx?id=a9ffe044-dfb3-475b-ab8f-e2439bcafe2f1http://forthedefense.org/trackback.axd?id=a9ffe044-dfb3-475b-ab8f-e2439bcafe2fhttp://forthedefense.org/post/Fact-Patterns-and-Accident-Recreation.aspx#commenthttp://forthedefense.org/syndication.axd?post=a9ffe044-dfb3-475b-ab8f-e2439bcafe2f